The Times v. Its Law Firm

Lord, Day & Lord has been corporate counsel to the New York Times for 23 years. Thus it was surprising that when the Times fought the Pentagon papers case up to the Supreme Court, the venerable Wall Street firm played no part. The reason, as TIME learned last week: Lord, Day & Lord felt strongly that the Times should not publish the classified material, and the attorneys ultimately refused to take the case.

When Times executives last spring were debating whether to run the series, Lord, Day & Lord Partner Louis Loeb repeatedly advised that publication would be improper and might be illegal. The Times's vice president and general counsel, Attorney James Goodale, disagreed. When the Times went ahead, the law firm said that it would not be able to represent the paper in any resulting litigation because of a conflict of interest. "Lord, Day & Lord backed out on us," said Goodale. "We had to get another law firm at the last minute."

Privileged Relationship. The "conflict of interest" arose from the fact that one of the firm's partners, Herbert Brownell, has long been associated with Richard Nixon, John Mitchell and William Rogers. As Attorney General in the Eisenhower Administration, Brownell also supervised the drafting of the current classification regulations. Beyond the conflict-of-interest problem, members of the law firm felt, as Loeb confirmed last week, that they had to consider the question of whether to inform the Government of the Times's intention to publish the Pentagon papers.

Communication between a lawyer and his client is, of course, privileged; any public recounting of such a private confidence by a lawyer can be grounds for disbarment. But in most jurisdictions the privilege does not apply when a client seeks his attorney's advice apparently for the purpose of breaking the law.

Lord, Day & Lord may well have felt that the Times was about to break the laws relating to classified documents, and may also have been concerned about a possible threat to national security. In the end the firm decided not to inform the Government. The legal question has yet to be resolved; it is still unclear whether the Times actually violated any law (TIME, July 26).

As a result of the falling out, however, the newspaper will no longer give Lord, Day & Lord litigation assignments. Instead, these will be handled by another New York firm, Cahill, Gordon, Sonnett, Reindel & Ohl, which, with the help of Constitutional Law Professor Alexander Bickel of Yale, successfully represented the Times in the Pentagon papers case.

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